With ICWA on Chopping Block, Lawmakers Introduce Colorado Version

With the U.S. Supreme Court considering overturning the Indian Child Welfare Act, state legislators have introduced a bill to codify the federal law in Colorado.

Introduced March 22, SB23-211 would adopt federal regulations of the 1978 ICWA as state law. The bill is set for its first hearing in front of the Senate State, Veterans, & Military Affairs Committee on April 6.

Democratic Sen. Jessie Danielson, one of the bill’s prime sponsors, said it was introduced in response to the U.S. Supreme Court’s upcoming ruling in Brackeen v. Haaland which asks if ICWA’s placement preferences disadvantage and discriminate against children with Native American ancestry and if the placement preferences exceed Congress’ authority over state governments.

The Supreme Court heard oral arguments in the case last fall and is expected to issue its ruling by the end of its current term this summer. The ruling could potentially strike portions of ICWA and its requirements, allowing states to handle Native American child removal matters as they see fit.

ICWA was passed by Congress in 1978 and establishes requirements that state agencies must meet in cases where children with Native American ancestry are being removed from their parents or adopted including in cases of child abuse and neglect. The law states its purpose is to ensure “the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.”

It was passed in response to studies from 1969 and 1974 by the Association on American Indian Affairs that found 25-35% of children with Native American ancestry had been separated from their families and adopted or placed in foster homes or institutions, a rate that was much higher than the general population. Around 85% of those children were placed into in non-Native American homes. Congressional records at the time of its passage emphasized the ICWA hoped to reduce that disparity and its impacts on children, families and tribes.

Under ICWA, state agencies charged with removal and placement need to meet certain requirements in cases with children who are either federally recognized tribe members or the biological child of a federally recognized tribe member also eligible for membership. Those requirements include investigating claims of tribal membership, involving parents and tribe leaders in proceedings, making active efforts to keep children with their families and prioritizing adoption of children into family homes, homes of fellow tribal members or homes of other tribal members.

While ICWA has been in place for over 40 years, research from 2007 found Native American children are still disproportionately impacted in family court removal proceedings.

Danielson said in an email to Law Week that the bill hopes to preserve ICWA requirements in Colorado should the U.S. Supreme Court overturn it.

“Prior to the passage of the ICWA, state agencies and courts were disproportionately removing Native children from their families and placing them in non-native homes. These removals were devastating to the kids and entire communities,” said Danielson in an email. “Upholding the ICWA is important to protect Native children, cultural and family ties and tribal sovereignty.”

Also sponsoring the bill are Democratic lawmakers Sen. Dominick Moreno, and Reps. Barbara McLachlan and Elizabeth Velasco.

If passed, Colorado would join 10 other states with their own versions of ICWA: Iowa, Michigan, Minnesota, Nebraska, New Mexico, Oklahoma, Oregon, Washington, Wisconsin and Wyoming. Other states considering their own ICWA this session include Arizona, North Dakota, Utah, Montana and South Dakota.

The Supreme Court is currently considering an appeal from a fractured en banc Fifth Circuit Court of Appeals that issued six opinions with the judges unable to come to a majority on all issues around the constitutionality of ICWA.

Three states, Texas, Louisiana and Indiana, and seven individuals who sought to adopt Native American children but weren’t prioritized under ICWA in October 2017 sued leadership in the U.S. Department of the Interior, the Bureau of Indian Affairs and the U.S. Department of Health and Human Services. The lawsuit asked a Texas federal court to find certain ICWA provisions and a 2016 rule on implementing it violated the Fifth Amendment’s due process and equal protection provisions, the anti-commandeering doctrine of the 10th Amendment as well as portions of the Administrative Procedure Act.

Overruling a motion to dismiss, the district court granted summary judgment in part to the plaintiffs and found portions of ICWA unconstitutional and invalid under APA.

A panel of the Fifth Circuit affirmed the court’s ruling on standing but reversed the decision on its merits. The appeals court granted en banc review resulting in a circuit split on questions presented.

On questions of ICWA’s constitutionality around placement of Native American children, eight circuit judges held that all of ICWA’s placement provisions were constitutional, six found them all unconstitutional and two held that one of the provisions was unconstitutional. The circuit was also split on questions around whether or not ICWA illegally commandeers state agencies in charge of child custody matters.

The appeal has attracted a number of amicus parties. The Fifth Circuit noted in its opinion that the three plaintiff states combined account for less than 1% of federally recognized tribes and less than 4% of American Indians and Alaska Natives. In the appeal to the Fifth Circuit, 26 states including Colorado and Washington D.C. joined in opposition to striking ICWA. The Fifth Circuit noted that together the amici are home to 94% of recognized tribes and 69% of the American Indian and Alaska Native population.

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